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Independents in Tasmania's Legislative Council: Analysing Strategies to Achieve Influence

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Independents in Tasmania's Legislative Council: Analysing Strategies to Achieve Influence Independents in Tasmania’s Legislative Council: Analysing strategies to achieve influence* Kate Crowley and Joshua Lippis Associate Professor, School of Social Sciences, University of Tasmania Bachelor of Arts Honours Graduate, School of Social Sciences, University of Tasmania *Double-blind reviewed article Abstract Independent Members (IMLCs) have long dominated the Tasmanian Legislative Council (Council). They are expected to play a review and scrutiny rather than a policy-making role. However, this article presents research that finds that such Members are indeed able to achieve policy influence despite their lack of supportive party colleagues or a party structure. Current and former IMLCs, one Labor MLC, and one Member of the lower House of Assembly, were interviewed for this research. They were asked about the IMLC role as they see it, the strategies used, if in fact they are used, to gain policy influence, IMLC work and influence on committees, and the obstacles, including political obstacles, to IMLCs achieving influence. Our paper addresses the lack of studies of the legislative behaviour of Councillors, and establishes that, despite the review and scrutiny focus of their role, and the attribution of the policy- making role to the lower house, IMLCs do seek influence and use various means of achieving it. ‘Tasmania has been well served by an upper house dominated by independents – they are there to knock the rough edges off government’.1 1 Tony Mulder IMLC 2011-17, See G. Burgess, and E. Gramenz, ‘Fresh Calls to Curb the Powers of Tasmania’s Upper House’, ABC News 20 June 2017. 102 INTRODUCTION Westminster upper houses are not known for their power to determine policy, indeed the literature typically suggests that to pursue such power would be to be seen to usurp the policy-making role of lower houses. However the (elected) Australian Senate initiates, reviews, and amends legislation and is thus extremely influential.2 The parliamentary decline thesis, which sees Westminster Parliaments as dominated by the executive, is less persuasive in such circumstances, as it is, we suggest, in the case of Tasmania.3 Some question the legitimacy of Westminster upper houses like Tasmania’s having any policy-making power or influence, beyond their roles in reviewing legislation and scrutinising the executive.4 There are clearly varying circumstances that impact in differing ways upon influence.5 Our focus is not upon context, process,6 or upper-lower house dynamics, but upon the influence that Tasmania’s IMLCs have, or believe that they have, in their review, scrutiny and policy roles, in amending and proposing bills, and in operating in committee environments. Whatever the context or make up of a Westminster upper house,7 there are two features that matter in terms of influence, namely whether the house has democratic legitimacy, as an elected body, and whether the government dominates its numbers. Westminster upper houses that are appointed, for example, the House of Lords and Canadian Senate, are arguably less legitimate and potentially less likely than elected upper houses to exercise a policy role. Some of their powers may be limited and some 2 M. Russell, and M. Benton, ‘(Re)assessing Parliamentary Policy Impact: The Case of the Australian Senate’. Australian Journal of Political Science 45(2) 2010, pp.159-174. 3 B. Stone, ‘Bicameralism and Democracy: The Transformation of Australian State Upper Houses’. Australian Journal of Political Science 37(2) 2002, pp. 267-281; A. Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries. London: Yale University Press, 1999. 4 M. Stokes, ‘The Future Role and Function of the Legislative Council’, in A. Fletcher (ed.), Operation of the Legislative Council: Discussion Brief. Tasmania, Parliament of Tasmania, 1997, pp. 39-54. 5 M. Russell and P. Cowley, ‘The Policy Power of the Westminster Parliament: The Parliamentary State and the Empirical Evidence’. Governance 29(1) 2016, pp. 121-137; M. Flinders and A. Kelso, ‘Mind the Gap: Political Analysis, Public Expectations and the Parliamentary Decline Thesis’. British Journal of Politics and International Relations 13(2) 2011, pp. 249-268. 6 G. Tsebelis, Veto Players: How Political Institutions Work. New Jersey: Princeton University Press, 2002. 7 J. Money and G. Tsebelis, ‘Cicero's Puzzle: Upper House Power in Comparative Perspective’. International Political Science Review 13(1) 1992, pp. 25-43. AUSTRALASIAN PARLIAMENTARY REVIEW 103 of their roles subject to review.8 On the other hand, being elected, Australia’s Senate is democratically legitimate, and because it is elected by proportional representation, government rarely dominates. It also has a range of powers that enable Senators to play an active role and to influence policy.9 In Tasmania, the Council is democratically legitimate for being elected by a preferential system, even though elections are out of synch with general elections, funding is limited, campaigns are subdued, and party policies are not usually canvassed.10 These circumstances do, however, routinely see Independents returned. Indeed they have dominated the Council continuously, unlike in any other upper house in the world,11 which predisposes them to being influential in ways that we will examine here. The Council can also send the lower house to an election without facing one itself,12 and is thus extremely powerful. Tasmania’s case is worthy of investigation, therefore, because it has such a Legislative Council; because it is, unusually, dominated by Independents; and because the legislative behaviour of the Independent Members of the Legislative Council (IMLCs) and their pursuit of influence is little known and worthy of investigation. Our research is qualitative, and interview informed. We employ a variety of research techniques and materials: literature review, parliamentary statistics, various legislative examples, interviews, and we included a case study for analysis. Ours is a positivist study that makes no judgements of IMLCs’ actions, although self-evidently some of these actions will be politically or ideologically based, and/or motivated by self-interest or the needs of constituents. We are agnostic as to whether influence is a legitimate activity for an IMLC in an upper house—this is beyond the scope of our inquiry. We sought qualitative evidence of influence by speaking with those who responded to our requests for interviews; that is, five IMLCs, one Labor MLC, formerly the Leader of the 8 Lijphart, Patterns of Democracy. 9 S. Bach, ‘Mandates, Consensus, Compromise, and the Senate’. Papers on Parliament No. 48. Canberra: Parliament of Australia, 2008. 10 In 2019, the 15 Members of the Council include four ALP MLCs, two Liberal MLCs and nine IMLCs. 11 L. Weeks, ‘Parliaments Without Parties’. Australasian Parliamentary Review 30(1) 2015, pp. 61-71. 12 N. Fewkes, ‘Tasmania's Legislative Council elections: Is Reform Needed?’. Australasian Parliamentary Review 26(2) 2011, pp. 87-98. VOL 34 NO 2 SPRING 2019/AUTUMN 2020 104 Government in the Legislative Council, and one Member of Parliament (to gain the perspective of the Tasmanian Greens).13 Attempts were also made to represent the political spectrum, hence the inclusion of Green and Labor Members; however, no Liberal Member agreed to participate, so claims made by our interviewees about Liberal Members are not included in this article. The Tasmanian Forest Agreement (TFA) study is included in our analysis by way of offering a concrete illustration of the actions and influence of IMLCs; and because this was the most complex and politicised bill that the Council has dealt with in recent times.14 It was the subject of a select committee and was heavily amended. There were claims of politicisation during this process. IMLC Paul Harriss, who opposed the TFA process, subsequently resigned, ran for the Liberals in the House of Assembly election, and, as a newly elected minister, abolished the TFA altogether. Our work contributes a novel ‘independents and policy influence’ perspective to the literature on Westminster upper houses, parliamentary procedure, and policy development. The transferability of its findings may be limited, given its reliance upon the experiences of IMLCs in a small, regional parliamentary jurisdiction. However it adds in general to the body of knowledge about the roles of independents in Westminster upper houses, with its focus on parliamentary procedure in the areas of policy initiation (Private Members Bills), legislative review, and scrutiny of the executive. It identifies strategies of influence by IMLCs that could be more fully investigated by future broader research on MLCs, including those who are party members. We offer qualitative insight into the role of IMLCs that highlights the need for further research into the dynamics of the Tasmanian Parliament more broadly, given the historical dominance of independents in the Legislative Council. 13 Seven Members of the Tasmanian Parliament were interviewed: Hon. Rob Valentine - Independent MLC first elected 2011; Hon. Ivan Dean - Independent MLC first elected 2003 ; Hon. Sue Smith - Independent MLC first 1997- 2013 and President of the Legislative Council 2008-2013; Hon. Ruth Forrest - Independent MLC first elected 2005; Hon. Jim Wilkinson - Independent MLC first elected 1995 and President of the Legislative Council 2013-2019; Hon. Craig Farrell - Labor MLC first elected 2011, Leader of the Government in the Legislative Council 2012-2014 and President
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